California Domestic Violence Defense
A recent U.S. Supreme Court case, called Crawford v. Washington (2004) 124 S.Ct. 1354, has dramatically impacted the outcomes of many recent domestic violence prosecutions. Since the Crawford case, prosecutors find it far more difficult to admit an alleged victim's (a.k.a. complaining witness') tape recorded statements when he/she refuses to testify at trial, or otherwise becomes unavailable (i.e., if she leaves the jurisdiction.)
Prior to Crawford v. Washington, the world will remember, California had enacted Evidence Code section 1370, otherwise known as "The Nicole Brown Simpson Hearsay Exception." This exception arose, because Nicole Brown Simpson had been killed, and her 911 calls about O.J. Simpson were hearsay. "The Nicole Brown Simpson" hearsay exception allowed the prosecution to admit 911 tapes and other written or recorded statements regarding prior violence or threats of violence made by the defendant, if the victim became "unavailable" at trial (either due to death or because she later refused to testify).
Now for a little background on legal terminology. Most people know that "hearsay" is not admissible in trial. However, most people don't know what "hearsay" is.
The legal definition of hearsay is as follows: Hearsay is an out-of-court statement or utterance, offered for the truth of the matter asserted. HUH? Translation: When a lawyer tries to introduce what someone said as evidence of a fact in court, if that someone made the statment out of court, then that statement is hearsay and the lawyer cannot use the statement to prove whatever he/she is trying to prove. In law there few hard and fast rules, and there are many exceptions to the "hearsay rule." This article is about just one of them.
For example, let's consider the typical domestic violence prosecution where the "Nicole Brown Simpson" issue comes up. In fact, this fact pattern comes from my most recent domestic violence trial.
Mr. and Mrs. Jones had a very heated argument over marital fidelity. In a fit of rage, Mr. Jones strikes Mrs. Jones about her head area. Mrs. Jones leaves the house, and calls 911 when she gets to her mother's house. The police go to Mr. Jones' house and arrest him. A few days later, an inspector with the police department called Mrs. Jones and tape record their conversation. During this taped conversation, Mrs. Jones tells the story about the argument and the physical violence. The office of the District Attorney files domestic violence charges against Mr. Jones. Mr. and Mrs. Jones mend their relationship while the court proceedings are pending. At the trial, it comes to the attention of both attorneys that Mrs. Jones no longer wants her husband to have penal repercussions to his misbehavior. Then, at trial, the prosecutor announced that Mrs. Jones refused to testify. Mrs. Jones cited her job duties as the reason.
Now, prior to the Crawford case, prosecutors would use Evidence Code section 1370 to try and get taped conversations between the alleged victim and police investigators or 911 operators into evidence over the defense attorneys "hearsay" objection. Until the Crawford case, it would work. In fact, prosecutors would give pre-printed notices to defense counsel of their intent to offer any recorded statements into evidence, even if the alleged victim did not show up to trial. Things have now changed dramatically.
In our fact pattern, when Mrs. Jones announced to the prosecutor that her job prevented her from attending court, the district attorney had no choice but to dismiss the case entirely. Mr. Jones was free from the great burden of a criminal trial, possible conviction, jail and probation. For good or ill, he was made a free man, due almost entirely to the recent U.S. Supreme Court decision in Crawford v. Washington.
The Crawford case stands for the basic proposition that the Sixth Amendment Confrontation Clause requires that a defendant in a criminal prosecution has the right to confront his accusers and witness against him with cross-examination. It sounds odd that a very recent Supreme Court Case would enact the Sixth Amendment Confrontation Clause, but over the centuries numerous exceptions had very much eroded this fundamental constitutional right. Basically, the Crawford case affirmed the common law exceptions to the "hearsay rule" that require the witness be unavailable and the statements to be non-testimonial (meaning not intended to be used in a criminal trial).
For example, a 911 recording of a dead guy that contains the statement "Oh my God. Joe Shmoe shot me in the stomach," would probably fit an exception to the hearsay rule under Crawford, because the dead guy is unavailable due to being dead, and his statement is not "testimonial in nature," meaning he probably called 911 to get medical help, and not to establish the indentity of his killer for the government lawyers. So, some 911 tapes may still get in, although some believe that they should not get in under California Evidence Code 1370, which some legal scholars believe to be invalidated as a result of Crawford. All criminal defense lawyers expect a great amount of litigation over the meaning of the Crawford case.
In sum, this article was about domestic violence prosecutions, not homicide prosecutions, and the impact of a a recent Supreme Court case on domestic violence prosecutions. Many domestic violence incidents end in someone being killed, but then one is confronted with a homicide prosecution, not just a domestic violence prosecution. It appears that new constitutional case law will change the course of domestic violence prosecutions where the alleged victim is still alive but refuses to testify, for whatever reason (usually because he/she has mended the relationship with the accused assailant/significant other).
Prior to Crawford v. Washington, the world will remember, California had enacted Evidence Code section 1370, otherwise known as "The Nicole Brown Simpson Hearsay Exception." This exception arose, because Nicole Brown Simpson had been killed, and her 911 calls about O.J. Simpson were hearsay. "The Nicole Brown Simpson" hearsay exception allowed the prosecution to admit 911 tapes and other written or recorded statements regarding prior violence or threats of violence made by the defendant, if the victim became "unavailable" at trial (either due to death or because she later refused to testify).
Now for a little background on legal terminology. Most people know that "hearsay" is not admissible in trial. However, most people don't know what "hearsay" is.
The legal definition of hearsay is as follows: Hearsay is an out-of-court statement or utterance, offered for the truth of the matter asserted. HUH? Translation: When a lawyer tries to introduce what someone said as evidence of a fact in court, if that someone made the statment out of court, then that statement is hearsay and the lawyer cannot use the statement to prove whatever he/she is trying to prove. In law there few hard and fast rules, and there are many exceptions to the "hearsay rule." This article is about just one of them.
For example, let's consider the typical domestic violence prosecution where the "Nicole Brown Simpson" issue comes up. In fact, this fact pattern comes from my most recent domestic violence trial.
Mr. and Mrs. Jones had a very heated argument over marital fidelity. In a fit of rage, Mr. Jones strikes Mrs. Jones about her head area. Mrs. Jones leaves the house, and calls 911 when she gets to her mother's house. The police go to Mr. Jones' house and arrest him. A few days later, an inspector with the police department called Mrs. Jones and tape record their conversation. During this taped conversation, Mrs. Jones tells the story about the argument and the physical violence. The office of the District Attorney files domestic violence charges against Mr. Jones. Mr. and Mrs. Jones mend their relationship while the court proceedings are pending. At the trial, it comes to the attention of both attorneys that Mrs. Jones no longer wants her husband to have penal repercussions to his misbehavior. Then, at trial, the prosecutor announced that Mrs. Jones refused to testify. Mrs. Jones cited her job duties as the reason.
Now, prior to the Crawford case, prosecutors would use Evidence Code section 1370 to try and get taped conversations between the alleged victim and police investigators or 911 operators into evidence over the defense attorneys "hearsay" objection. Until the Crawford case, it would work. In fact, prosecutors would give pre-printed notices to defense counsel of their intent to offer any recorded statements into evidence, even if the alleged victim did not show up to trial. Things have now changed dramatically.
In our fact pattern, when Mrs. Jones announced to the prosecutor that her job prevented her from attending court, the district attorney had no choice but to dismiss the case entirely. Mr. Jones was free from the great burden of a criminal trial, possible conviction, jail and probation. For good or ill, he was made a free man, due almost entirely to the recent U.S. Supreme Court decision in Crawford v. Washington.
The Crawford case stands for the basic proposition that the Sixth Amendment Confrontation Clause requires that a defendant in a criminal prosecution has the right to confront his accusers and witness against him with cross-examination. It sounds odd that a very recent Supreme Court Case would enact the Sixth Amendment Confrontation Clause, but over the centuries numerous exceptions had very much eroded this fundamental constitutional right. Basically, the Crawford case affirmed the common law exceptions to the "hearsay rule" that require the witness be unavailable and the statements to be non-testimonial (meaning not intended to be used in a criminal trial).
For example, a 911 recording of a dead guy that contains the statement "Oh my God. Joe Shmoe shot me in the stomach," would probably fit an exception to the hearsay rule under Crawford, because the dead guy is unavailable due to being dead, and his statement is not "testimonial in nature," meaning he probably called 911 to get medical help, and not to establish the indentity of his killer for the government lawyers. So, some 911 tapes may still get in, although some believe that they should not get in under California Evidence Code 1370, which some legal scholars believe to be invalidated as a result of Crawford. All criminal defense lawyers expect a great amount of litigation over the meaning of the Crawford case.
In sum, this article was about domestic violence prosecutions, not homicide prosecutions, and the impact of a a recent Supreme Court case on domestic violence prosecutions. Many domestic violence incidents end in someone being killed, but then one is confronted with a homicide prosecution, not just a domestic violence prosecution. It appears that new constitutional case law will change the course of domestic violence prosecutions where the alleged victim is still alive but refuses to testify, for whatever reason (usually because he/she has mended the relationship with the accused assailant/significant other).